Wayne White, Michael Wood, Joshua Gandee, and others similarly situated, and the International Association of Fire Fighters Local 91 v. City of Parkersburg

FILED

May 27, 2026

STATE OF WEST VIRGINIA released at 3:00 p.m.

SUPREME COURT OF APPEALS C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Wayne White, Michael Wood, Joshua Gandee,

and others similarly situated, and the

International Association of Fire Fighters Local 91,

Petitioners, Plaintiffs below

v.) No. 24-82 (22-ICA-142)

City of Parkersburg,

Respondent, Defendant below

MEMORANDUM DECISION

Petitioners Wayne White, Michael Wood, Joshua Gandee, and others similarly situated

(collectively, “the Firefighters”), and the International Association of Fire Fighters (“the IAFF”)

Local 91 filed this action in the Circuit Court of Wood County alleging that Respondent City of

Parkersburg (“the City”) violated the West Virginia Wage Payment and Collection Act

(“WPCA”)1 when it reduced the Firefighters’ longevity increment and Emergency Medical

Technician (“EMT”) certification pay in 2017, without notice, which caused them to receive less

pay per hour.2 The circuit court granted summary judgment to the Firefighters on the issue of

liability, held that IAFF Local 91 had representative standing, and later ruled in the Firefighters’

favor on a dispute regarding the calculation of damages. The City appealed to the Intermediate

Court of Appeals of West Virginia (“ICA”). On December 27, 2023, the ICA reversed the circuit

court’s summary judgment order and remanded the matter with directions to enter an order

granting the City’s motion for summary judgment, in part, dismissing Count I of the amended

complaint (longevity increment), dismissing the claims of the IAFF Local 91 in their entirety for

lack of representative standing, and for further proceedings on Count II (EMT pay).3

On appeal to this Court, the Firefighters and the IAFF Local 91 ask that we reverse the

decision of the ICA, reinstate the orders of the circuit court and remand for further proceedings for

the calculation of damages. As explained below, we agree that the City’s reduction in the

Firefighters’ accrued longevity increment and EMT pay, without notice, violated the WPCA, and

that the IAFF Local 91 has representative standing. Because this appeal presents no substantial

1

See W. Va. Code §§ 21-5-9(1) – (3).

2

Petitioners are represented by counsel Walt Auvil and Kirk Auvil. The City is represented

by counsel Johnnie E. Brown and Donovan M. Powell.

3

City of Parkersburg v. White, No. 22-ICA-142, 2023 WL 9317831 (W. Va. Ct. App. Dec.

27, 2023) (memorandum decision).

1

question of law, a memorandum decision reversing the decision of the ICA is appropriate. See W.

Va. R. App. P. 21(d).4

Factual and Procedural History

In 2018, the Firefighters, full-time civil service employees, and the IAFF Local 91 sued

the City over a pay dispute. There are two classes of increased hourly pay at issue in this case:

longevity increment and EMT pay. The parties agree that the applicable pay policies are contained

in two ordinances adopted by the Parkersburg City Council that became effective July 1, 2008.

The first ordinance provided the Firefighters with a longevity increment; employees

working a forty-eight-hour workweek were entitled to an additional twenty-five cents per hour

($0.25), and those working a fifty-four-hour workweek were entitled to twenty-two point two two

cents per hour ($0.2222), for each year of city service.5 The second ordinance provided the EMT

certified Firefighters an increase in their hourly pay; employees working a forty-eight hour

workweek were entitled to an additional forty-two cents per hour ($0.42), and day shift personnel

were entitled to an additional fifty cents per hour ($0.50).6 This ordinance did not contain a

specific pay rate for EMT pay for employees working a fifty-four-hour workweek.

4

The Court appreciates the amicus brief filed by the Professional Fire Fighters of West

Virginia and West Virginia Employment Lawyers Association in support of the Firefighters and

the IAFF Local 91.

5

The circuit court noted that there were two versions of the ordinance governing the

longevity increment in the record, one adopted on May 20, 2008, that did not mention the rate for

fifty-four-hour workweek employees, and a second version adopted on November 8, 2011 (that

states it was “Revised 05/20/08”), stating that,

[e]ffective July 1, 2008 (not retroactive) all full-time regular employees,

police civil service employees, and fire (40-hour) civil service employees will

receive longevity of thirty ($.30) cents per hour for each year of city service.

Appointed part-time employees will receive longevity of six hundred twenty-four

($624) dollars per year for each year of city service. Fire civil service employees

working a 48[] hour work-week will receive longevity of twenty-five ($.25) cents

per hour for each year of city service. Fire civil service employees working a

54[]hour work-week will receive longevity of twenty-two point two two($.2222)

cents per hour for each year of city service. Employees will receive said longevity

on their anniversary date of employment. Longevity will be included in the base

pay for purposes of overtime, etc. The granting of all longevity pay is contingent

upon City Council action and approval through the City budget.

6

The ordinance governing EMT pay stated, in relevant part, that,

[a]ll members of the Department who attain the designation of

Firefighter/EMT and maintain certification of an Emergency Medical Technician

shall receive an increase in pay of forty-two cents ($0.42) per hour for all forty-

2

The Firefighters were working a forty-eight-hour workweek in July 2008. So, the City

paid them a longevity increment at $0.25 per hour for each year of city service, and paid qualified

Firefighters EMT pay at $0.42 per hour, consistent with the ordinances.

On July 1, 2011, the City changed the Firefighters’ schedules to a fifty-four-hour

workweek. At the same time, the City suspended the operation of the longevity increment. While

the Firefighters did not earn the longevity increment increases after 2011, the City continued to

pay them previously accrued longevity increments for each year worked according to the prior

applicable ordinances. For example, the years between July 1, 2008, and July 1, 2011, were paid

according to the rates established in the 2008 ordinance (for a forty-eight-hour workweek), and the

years of service prior to 2008 were paid according to their respective ordinances. The City also

continued to pay qualified Firefighters EMT pay at the rate of $0.42 per hour, despite the change

in their schedules.

In March 2017, the City concluded that it was not applying the ordinances correctly,

considering the Firefighters’ fifty-four-hour workweek.7 So, beginning in August 2017, it began

providing annualized increases of $624 for longevity increment and $1,040 for EMT pay. For the

longevity increment, the City assessed the Firefighters’ work schedules and divided their

scheduled hours for each year by $624 and then added that amount to each Firefighters’ hourly

rate. This change caused a reduced hourly rate of pay for all the Firefighters; the amount of the

hourly reduction depended on the number of years of each employee’s city service. For EMT pay,

the City divided the $1,040 annual amount the City decided was due under the ordinance into the

Firefighters’ fifty-four-hour workweek schedule which reduced the EMT pay from $0.42 per hour

to $0.37 an hour. The City maintained that it was unnecessary to give the Firefighters notice of

the pay change because it was simply correcting an error, consistent with the intent of the

ordinances.8 The pay reductions imposed by the City in 2017 were not submitted to the

Parkersburg City Council for approval.

eight (48) hour work week personnel and fifty cents ($0.50) per hour for all day

shift personnel effective July 1, 2008.

7

The City claimed that it discovered its error during a grievance proceeding Petitioner

White filed after he was not selected for the position of fire inspector. Mr. White attempted to

resolve the issue of the reduction of his hourly pay through the grievance procedure prior to the

Firefighters filing the complaint in this matter.

8

The City reasoned that the longevity increment was intended to be $624 per year

regardless of the number of hours the Firefighters worked each week because multiplying either a

forty, forty-eight, or fifty-four-hour workweek by the corresponding rates of $0.30, $0.25, and

$0.2222, respectively, totals $624 per year. Although the ordinance did not set an EMT pay rate

for those working a fifty-four-hour work week, the City interpreted the ordinance to provide an

annual pay increase of $1,040 for EMT pay and adjusted the hourly rate to match the fifty-four-

hour workweek.

3

The Firefighters and the IAFF Local 91 filed a two-count amended complaint in October

2018 against the City. In Count I, they alleged that the reduction of the longevity increment,

without notice, violated the written terms of their employment agreement and the WPCA. In Count

II, they alleged that the reduction of EMT pay, without notice, violated the employment agreement

and the WPCA. The Firefighters alleged that the IAFF Local 91 represented them and all other

similarly situated employees of the City of Parkersburg Fire Department. The Firefighters and the

IAFF Local 91 sought reinstatement of the pay practices set forth in the ordinances, damages for

lost wages, injunctive relief prohibiting the City from taking further actions in violation of the

ordinances, as well as costs and attorney fees.

The City moved to dismiss the complaint, and the circuit court denied the motion. The

parties ultimately agreed that there was no dispute of material fact as to liability and filed cross-

motions for summary judgment.

The circuit court denied the City’s motion for summary judgment. In its October 22, 2021,

amended order, the circuit court granted the Firefighters’ motion for summary judgment on

liability. It concluded that the City’s 2017 reduction of the Firefighters’ hourly wages—accrued

longevity increment and EMT pay—without notice of a change in these pay practices, violated the

WPCA. The circuit court found that the ordinances provided that the Firefighters should have

received $0.25 per hour for accrued longevity increment during the applicable timeframe. It stated

that the City’s argument that the eligible employees were to receive $624 per year in longevity

increment was negated by the plain language of the ordinance, and that the City failed to consider

that, due to overtime, the Firefighters would receive different amounts per year for longevity

increment. The circuit court found the issue of EMT pay “much clearer.” It stated that in 2017,

the City reduced EMT pay from $0.42 per hour to $0.37 an hour when there was “absolutely no

language in [the ordinance] to support a reduction[.]” The circuit court concluded that the

Firefighters “should have received $0.25 per hour from 2017 to present for their accrued longevity

pay[,]” and “$0.42 per hour for the EMT certification pay from 2017 to present.” It ordered that

all eligible fifty-four-hour workweek employees, “shall be paid $0.25 per hour per years of service

between July 1, 2008 and July 1, 2011 for longevity pay and $0.42 per hour for EMT [pay.]”

Finally, the circuit court found that IAFF Local 91 had representative standing. It ordered the

matter to proceed on the issue of damages.

The parties did not agree on how to calculate damages, and the circuit court conducted a

hearing on May 5, 2022, to resolve the dispute. The Firefighters argued that the City’s calculations

did not fully restore their pay to the pre-2017 amounts, because it was considering ordinances prior

to 2008. On the other hand, the City contended that the Firefighters sought to increase pre-2008

longevity increment, even though there was no basis upon which the circuit court’s amended

summary judgment order could be interpreted to affect years of service prior to the 2008 ordinance.

The circuit court noted that the City did not contend that pre-2008 ordinances (not previously

produced or relied on) affected the 2017 recalculation of the Firefighters’ hourly rate of pay until

April 2022. It concluded the City was judicially estopped from inserting new defenses into the

litigation. On August 31, 2022, the circuit court ordered that the Firefighters be restored to the

hourly rate prior to the 2017 reduction, including correcting the retirement pay rate for any affected

firefighter. On September 28, 2022, the circuit court entered an “Agreed Order Staying the August

4

31st Order and Declaring the August 31st Order a Final Appealable Order as to Liability” to allow

the City to appeal to the ICA.

The City appealed the circuit court’s final order to the ICA, raising assignments of error

related to the substantive rulings in the amended summary judgment order. The ICA issued a

memorandum decision reversing the circuit court’s October 22, 2021, amended order.9 It

determined that the City’s application of the fifty-four-hour longevity increment rate set forth in

the 2008 ordinance was not a change or reduction in wages contemplated by the WPCA. However,

the ICA found that because no city personnel worked a fifty-four-hour workweek at the time the

EMT pay ordinance was enacted in 2008, the ordinance failed to provide notice of the change in

pay as required under the WPCA. It found the record was unclear whether the City otherwise

provided notice to its employees. The ICA remanded the matter to the circuit court with directions

to enter an order granting the City’s motion for summary judgment in part, dismissing Count I of

the amended complaint (longevity increment), dismissing the claims of the IAFF Local 91 in their

entirety, and for further proceedings on Count II to determine whether the City provided notice to

the Firefighters of the change in EMT pay.

The Firefighters and the IAFF Local 91 now appeal the ICA’s memorandum decision to

this Court.

Standard of Review

“On appeal of a decision from the Intermediate Court of Appeals of West Virginia, the

Supreme Court of Appeals of West Virginia applies a de novo standard of appellate review to a

9

The ICA noted that, “ordinarily, an order determining liability without a determination of

damages is not a final adjudication of a claim and is not immediately appealable.” White, 2023

WL 9317831, at *4 n.5. However, it deferred to the circuit court’s determination that the case met

the ministerial exception to finality. See Syl. Pt. 3, in part, C & O Motors, Inc. v. W. Va. Paving,

Inc., 223 W. Va. 469, 677 S.E.2d 905 (2009) (“However, an immediate appeal from a liability

judgment will be allowed if the determination of damages can be characterized as ministerial. That

is, a judgment that does not determine damages is a final appealable order when the computation

of damages is mechanical and unlikely to produce a second appeal because the only remaining

task is ministerial, similar to assessing costs.”). At oral argument, the parties agreed that this case

satisfied the ministerial exception to finality.

Further, the ICA found that the City did not exceed the scope of this appeal by challenging

the circuit court’s rulings from the October 22, 2021, order. See Syl. Pt. 6, Riffe v. Armstrong, 197

W. Va. 626, 477 S.E.2d 535 (1996) holding modified by Moats v. Preston Cnty. Comm’n, 206 W.

Va. 8, 521 S.E.2d 180 (1999) (“Where an appeal is properly obtained from an appealable decree

either final or interlocutory, such appeal will bring with it for review all preceding nonappealable

decrees or orders, from which have arisen any of the errors complained of in the decree appealed

from, no matter how long they may have been rendered before the appeal was taken.”) (internal

citations omitted)).

5

circuit court’s entry of summary judgment.” Syl. Pt. 1, Moorhead v. W. Va. Army Nat’l Guard,

251 W. Va. 600, 915 S.E.2d 378 (2025). Summary judgment is appropriate when “there is no

genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”

W. Va. R. Civ. P. 56(a). See also Syl. Pt. 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755

(1994) (“Summary judgment is appropriate where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed

to make a sufficient showing on an essential element of the case that it has the burden to prove.”).

Based on these standards, this Court will consider the parties’ arguments.

Discussion

The Firefighters and the IAFF Local 91 first contend that the City’s 2017 reduction of the

longevity increment and EMT pay was in violation of the ordinances, nine years of its pay

practices, and the WPCA. See W. Va. Code §§ 21-5-9(1) – (3). They argue that it is undisputed

that the City made these changes without notice and that the changes caused the Firefighters to

receive less pay per hour than they had been receiving from 2011 to August 2017. The City

responds that because its corrective measures were consistent with the intent of the ordinances,

notice was unnecessary.

We begin our analysis by examining the WPCA. As such, we are mindful that “[t]he

primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.”

Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975).

Therefore, where the legislative intent is plainly expressed, we are required to apply rather than

interpret the statute at issue. “When a statute is clear and unambiguous and the legislative intent

is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the

courts not to construe but to apply the statute.” Syl. Pt. 5, State v. Gen. Daniel Morgan Post No.

548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).

The WPCA “is remedial legislation designed to protect working people and assist them in

the collection of compensation wrongly withheld.” Mullins v. Venable, 171 W. Va. 92, 94, 297

S.E.2d 866, 869 (1982). The WPCA provides that employers must notify employees of their rate

of pay, comply with their written pay policies, and furnish notice to employees of any changes in

those arrangements before making such changes. See W. Va. Code § 21-5-9. The WPCA

provides, in relevant part:

Every person, firm and corporation shall:

(1) Notify his employees in writing, at the time of hiring of the rate of pay,

and of the day, hour, and place of payment.

(2) Notify his employees in writing, or through a posted notice maintained

in a place accessible to his employees of any changes in the arrangements specified

above prior to the time of such changes.

(3) Make available to his employees in writing or through a posted notice

maintained in a place accessible to his employees, employment practices and

policies with regard to vacation pay, sick leave, and comparable matters.

6

Id. at §§ 21-5-9(1) – (3).

We first address whether the City made any changes in the arrangements specified in the

ordinance regarding the rate of pay for the longevity increment without giving the Firefighters

notice. The parties agree that the City paid the Firefighters longevity increment at the rate of $0.25

per hour for each year of city service from 2008 through 2011 in accordance with the ordinance.

When the City suspended the longevity increment beginning in July 2011, it continued to pay

accrued longevity increments at $0.25 per hour. But in 2017, it reduced the Firefighters’ longevity

increment—which had accrued between 2008 and 2011—without notice. Beginning in August

2017, the City began providing annualized increases of $624 for longevity increment for all

employees (which it calculated at $0.22 per hour), even though the ordinance only referenced $624

per year for appointed part-time employees.10 The parties agree that none of the Firefighters

affected by the 2017 reduction in hourly wages were ever appointed part-time employees.

The City maintains that its 2017 reduction of the longevity increment was consistent with

the ordinance, so notice of the change was unnecessary considering the Firefighters schedule

change to a fifty-four-hour workweek in 2011. However, this argument is unpersuasive because

the Firefighters did not earn additional longevity increment after their schedule changed. The

longevity increments at issue accrued between 2008 and 2011, when the Firefighters worked a

forty-eight-hour workweek, and the ordinance provided that they were to be paid at the rate of

$0.25 per hour for each year of city service. Accordingly, the circuit court correctly concluded

that the City violated the WPCA when it changed the rate of accrued longevity increment pay

without prior notice. See W. Va. Code § 21-5-9(2). The ICA erred when it concluded otherwise.

As this Court has held,

In the absence of a contractual obligation providing otherwise, a public

employer is permitted to unilaterally modify a longstanding policy affecting the

rights of employees where notice is provided to such employees and where the

modification of policy does not retroactively impair previously earned and vested

rights, such as pension benefits.

Syl. Pt. 4, Boggess v. City of Charleston, 234 W. Va. 366, 765 S.E.2d 255 (2014).

The City’s attempt to characterize its changes to the Firefighters’ longevity increment as a

corrective, prospective measure consistent with Boggess is unconvincing. Rather, the City

unilaterally modified the longevity increment policy without prior notice, and this modification

retroactively impaired previously earned longevity increments, a practice prohibited under

Boggess.11

10

See supra note 5.

11

Therefore, we agree with the Firefighters that there was no overpayment of their

longevity increment from 2011 to 2017, the issue raised in their second assignment of error.

7

We next address whether the City made any changes in the arrangements specified in the

ordinance regarding the rate of EMT pay without giving the Firefighters notice. The parties agree

that the City paid EMT pay at the rate of $0.42 per hour beginning in 2008 in accordance with the

ordinance. Beginning in August 2017, the City began providing annualized increases of $1,040

for EMT pay, and reduced it to $0.37 per hour, without notice. The circuit court correctly

concluded that the City’s recalculation of the EMT pay to $0.37 per hour had no foundation in the

language of the ordinance.12 Therefore, the circuit court correctly concluded that the City violated

the WPCA when it reduced the rate of EMT pay in August 2017 without prior notice to the

Firefighters and despite having paid that rate from 2008 to 2017. See W. Va. Code § 21-5-9(2);

see also Boggess, Syl. Pt. 4, in part, 234 W. Va. at 377, 765 S.E.2d at 266 (public employer may

“unilaterally modify a longstanding policy affecting the rights of employees where notice is

provided to such employees”). The ICA erred when it concluded otherwise.

Turning to the issue of damages, the Firefighters and the IAFF Local 91 argue that the

circuit court correctly applied judicial estoppel to preclude the City from providing new evidence

and arguments after the October 22, 2021 amended order.13 They contend that the City waived

any argument about differing amounts of longevity increment preceding the adoption of the 2008

ordinance. On the other hand, the City maintains that it did not raise a new defense but it was

simply performing damage calculations in accordance with the circuit court’s October 22, 2021

amended order. It also contends that the circuit court’s August 31, 2022, order “effectively granted

back pay for longevity pay earned and paid at rates according to pre-2008 ordinances which have

separate and unique terms and conditions[,]” that the Firefighters never challenged in their

amended complaint. The parties’ arguments on this issue are unclear. However, this Court

discerns that the circuit court’s October 22, 2021, amended summary judgment order accurately

represents the relief the Firefighters sought—to correct the pay discrepancies that resulted from

the City’s 2017 recalculation of the relevant 2008 ordinances. We note that in its August 31, 2022,

final order the circuit court confirmed that the Firefighters “are entitled to full reinstatement of the

hourly rates of pay which were removed from them in 2017[.]” It held that the City was “judicially

estopped from including any additional alleged causes for the reduction in longevity pay which it

has repeatedly represented was caused solely by its 2017 reinterpretation of the Revised 5/20/08

longevity pay ordinance.” It also held that, “[a]s to each affected firefighter the City will restore

the reduction in each employee’s hourly rate it imposed in 2017[.]” So, the fact that some

12

See supra note 6.

13

In Syllabus Point two of West Virginia Dep’t of Transp., Div. of Highways v. Robertson,

217 W. Va. 497, 618 S.E.2d 506 (2005), this Court held:

Judicial estoppel bars a party from re-litigating an issue when: (1) the party

assumed a position on the issue that is clearly inconsistent with a position taken in

a previous case, or with a position taken earlier in the same case; (2) the positions

were taken in proceedings involving the same adverse party; (3) the party taking

the inconsistent positions received some benefit from his/her original position; and

(4) the original position misled the adverse party so that allowing the estopped party

to change his/her position would injuriously affect the adverse party and the

integrity of the judicial process.

8

Firefighters received longevity increment at reduced rates (under prior ordinances) that accrued

before the 2008 ordinance was adopted should not affect the restoration of their 2017 pay reduction

in this matter. For this reason, we conclude that the circuit court did not err when it applied judicial

estoppel to preclude the City from providing new defenses to the reason why it recalculated the

Firefighters’ longevity increment and EMT pay in 2017.

In their final assignment of error, the Firefighters and the IAFF Local 91 argue that the

IAFF Local 91 has representative standing under the test set forth by this Court in Syllabus Point

four of Affiliated Construction Trades Foundation v. West Virginia Department of Transportation,

227 W. Va. 653, 713 S.E.2d 809 (2011):

An organization has representative standing to sue on behalf of its members

when the organization proves that: (1) at least one of its members would have

standing to sue in their own right; (2) the interests it seeks to protect are germane

to the organization’s purpose; and (3) neither the claim asserted nor the relief

requested requires the participation of individual members in the lawsuit.

The parties agree that the first two criteria of Affiliated Construction Trades Foundation

are established, but they part ways on whether the third criterion is shown. The City maintains

that it is not satisfied because the WPCA limits remedies to causes of action brought by the affected

employees or the Commissioner of Labor. See W. Va. Code § 21-5-12. The City argues that the

Firefighters’ WPCA claim requires the participation of individual members in the lawsuit. On the

other hand, the Firefighters and the IAFF Local 91 argue that the City ignores that they sought

injunctive relief in the amended complaint, which would not require the participation of individual

members in the lawsuit. So, they argue that the third criterion of Affiliated Construction Trades

Foundation is met.

We agree with the Firefighters and the IAFF Local 91 that monetary damages recoverable

under the WPCA are distinguishable from the injunctive relief sought here, in that injunctive relief

generally benefits every member of an employee association equally whereas the amount of

monetary damages an employee suffers may vary from employee to employee. See Warth v.

Seldin, 422 U.S. 490, 515 (1975). “Where an association only seeks a declaration, injunction, or

some other form of prospective relief, the participation of its individual members is not required.”

State ex rel. Affiliated Const. Trades Found. v. Stucky, 229 W. Va. 408, 414, 729 S.E.2d 243, 249

(2012). For this reason, we conclude that the circuit court correctly found that the IAFF Local 91

has met all the criteria for representative standing. The ICA erred when it concluded otherwise.

Conclusion

For the reasons stated above, we reverse the December 27, 2023, memorandum decision

of the ICA and remand this case to the circuit court for further proceedings for the calculation of

damages, consistent with this decision.

Reversed and Remanded.

9

ISSUED: May 27, 2026

CONCURRED IN BY:

Justice William R. Wooton

Justice Charles S. Trump IV

Justice Thomas H. Ewing

Justice Gerald M. Titus III

DISSENTING:

Chief Justice C. Haley Bunn

Bunn, Chief Justice, dissenting:

Summary judgment is appropriate “only when it is clear that there is no genuine issue of

fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the

law.” Syl. Pt. 2, in part, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994) (quoting Syl.

Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963) and

Syl. Pt. 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992)). Despite the

parties’ insistence otherwise, and the majority’s capitulation to their position, this case does not

present such a circumstance of settled facts requiring no further development. Primarily at issue in

this matter is the calculation of certain longevity pay for plaintiff firefighters, who are employees

of the defendant City of Parkersburg, and whether the City’s change in the calculation of that pay

violated the West Virginia Wage Payment and Collection Act (“WPCA”), West Virginia Code

§§ 21-5-1 to -18. The circuit court, the Intermediate Court of Appeals (“ICA”), and the majority

all prematurely granted summary judgment relating to the plaintiff firefighters’ longevity pay—

even as these various courts ruled differently on which parties should prevail, the operative facts,

and, apparently, the application of the law to those facts. Despite purportedly applying the same

law to the same found facts, the circuit court and the majority found in favor of the plaintiffs, while

the ICA ruled in favor of the defendant. See City of Parkersburg v. White, No. 22-ICA-142, 2023

WL 9317831, at *5 (W. Va. Ct. App. Dec. 27, 2023) (memorandum decision). I dissent to the

majority’s resolution of this case because without further factual and legal development in the

circuit court, issues of material fact remain regarding the plaintiff firefighters’ longevity pay.1

1

The parties appeal other issues as well, including EMT pay and whether the International

Association of Fire Fighters Local 91 has standing. However, because I believe that the various

courts prematurely decided the issue regarding the firefighters’ longevity pay and the matter should

have had more factual and legal development, I do not reach the other issues on appeal.

10

Summary judgment should not have been prematurely granted to either party regarding the

calculation of longevity pay. Instead, I would have reversed the ICA’s decision, vacated the circuit

court’s order granting summary judgment to the plaintiffs, and remanded the matter back to the

circuit court for further factual development and legal analysis.

A. Relevant Factual and Procedural History

The heart of this matter concerns language in a 2008 City pay ordinance—and its 2011

amendment—relating to firefighters. In 2008, all firefighters worked a forty-eight hour workweek.

The City adopted the first version of the longevity ordinance on May 20, 2008, which provided

that “[e]ffective July 1, 2008 (not retroactive)” full time regular and fire civil service employees

working forty hours a week would receive $.30 “per hour for each year of city service,” part-time

employees would receive $624 per year for each year of city service, and, particularly relevant to

this matter, “[f]ire civil service employees working a 48-hour work-week will receive longevity of

twenty-five ($.25) cents per hour for each year of city service.” The ordinance provided that the

City would pay the longevity “on their anniversary date of employment” and “[l]ongevity will be

included in the base pay for purposes of overtime, etc.”

Effective July 1, 2011, the City suspended longevity pay “but not prior years’ service

credit.” In relevant part, the ordinance suspending longevity pay read as follows:

[T]he operation of the Longevity Plan, Section VIII, The Compensation

Plan of the City of Parkersburg Personnel Policies and Procedures or as it may be

set forth and contained elsewhere, be and it is hereby suspended and held for naught

for the budget years 2011-2012 and 2012-2013 and which longevity pay is based

upon such years, but not prior years’ service credit.

A few months later, on November 8, 2011, the City changed firefighters’ employment to a

fifty-four hour workweek. That same day, in the ordinance addressing longevity pay partially

recited above, and although longevity pay had been suspended in July 2011, the City adopted a

rate of longevity pay for employees working a fifty-four hour workweek ($0.2222 per hour per

year) that differed from those employees working forty-eight hour workweeks ($0.25 per hour per

year).2 That ordinance read, in full, then provided:

Effective July 1, 2008 (not retroactive) all full-time regular employees,

police civil service employees, and fire (40-hour) civil service employees will

2

The majority contends that the change of schedule and suspension of the longevity

increment occurred simultaneously. However, the findings of the circuit court do not support that

contention.

11

receive longevity of thirty ($.30) cents per hour for each year of city service.

Appointed part-time employees will receive longevity of six hundred twenty-four

($624) dollars per year for each year of city service. Fire civil service employees

working a 48hour [sic] work-week will receive longevity of twenty-five ($.25)

cents per hour for each year of city service. Fire civil service employees working a

54hour [sic] work-week will receive longevity of twenty-two point two

two($.2222) cents per hour for each year of city service. Employees will receive

said longevity on their anniversary date of employment. Longevity will be included

in the base pay for purposes of overtime, etc. The granting of all longevity pay is

contingent upon City Council action and approval through the City budget.

As noted by the circuit court, in the Compensation Plan, this language stated that it was “revised

05/30/08[.]”

Yet, after the 2011 change to a fifty-four hour workweek and through 2017, the City of

Parkersburg paid firefighters the higher rate of $0.25 per hour per year of each employee’s city

service. In 2017, however, the City reduced the amount paid to those employees per hour for

longevity pay to $0.2222. As discussed further below, the parties disagree as to the reason for this

change and whether this change was legal pursuant to the WPCA.

Relating to the longevity pay, in the Amended Complaint, the plaintiff firefighters asserted

that, by reducing their longevity pay, the City of Parkersburg “alter[ed] the terms and conditions

of the payment of the longevity pay” thus violating the WPCA.3 The plaintiffs claimed that the

terms and conditions of employment were set forth in the longevity pay ordinance and quoted the

2011 version in the complaint. The plaintiffs asserted the longevity pay was “not retroactive[,]” so

“lowering . . . longevity pay” violated the “written terms of employment” and violated the City’s

“representations to Plaintiffs regarding longevity pay.” In its answer to the Amended Complaint,

the City denied that it had violated the WPCA, instead asserting that it realized in 2017 that it had

paid the plaintiffs and other employees in error and reduced their longevity pay.

The parties, by each filing their own motions for summary judgment before the circuit

court, separately contended that there is no genuine issue of material fact. However, the facts, as

argued by the parties to the circuit court, contained significant, material discrepancies relating to

the operation of the longevity ordinance and Compensation Plan at issue, why the pay changed,

and the effect of firefighters working a fifty-four hour workweek on the calculation of longevity

pay relative to that ordinance. While both parties agreed that consistently for nine years (between

2008 and 2017) the City paid the firefighters $.25 per hour per year under the ordinance, whether

3

The Amended Complaint provided no statutory citation to the WPCA.

12

those payments after 2011 were proper was and continues to be a matter of contention and a factual

dispute between the parties.

In the City’s memorandum of law in support its motion for summary judgment submitted

to the circuit court, the City contended that from July 2011 until March 2017, firefighters

“incorrectly received the $.25 rate reserved for a 48-hour work week longevity payment rather

than the correct $.2222 per hour rate for a 54-hour work week.” The City characterized these

payments as mistakes and overpayments, stating that the overpayments “continued until the

mistake was discovered and subsequently corrected in 2017.” The City then explained that it

reduced the longevity pay from the forty-eight hour workweek pay rate of $.25 per hour “to the

correct 54-hour work week rate of $.2222 as stated in the Longevity Plan.” The City asserts that

this amount corresponded with the “approved amount of $624 per year employed as set forth in

the Longevity Plan.”

The plaintiffs, on the other hand, argued in their motion for summary judgment as to

liability that from 2008 until 2017, the longevity payments were “paid properly” and the policy

adopting the longevity pay increment “provide[s] that [it] be calculated exactly was [it] was from

[its] inception in 2008 through [the City’s] ‘reinterpretation’ in 2017.” The plaintiffs further claim

that the “2017 ‘reinterpretation’ violates the employment agreement” and finally contend that the

City “adopted a policy” of paying $.25 per hour per year longevity increments and the

“reinterpretation” is a violation of the WPCA.

In considering the parties’ cross motions for summary judgment, the circuit court found in

favor of the plaintiffs and concluded, in an Amended Order issued on October 22, 2021, that:

1. The City’s “argument that all eligible City employees were to receive a set

$624.00 per year is negated by the language of the statute and the failure to

consider that due to overtime, the employees would be receiving different

amounts for longevity”;

2. The City’s actions “constituted a reduction in the Plaintiffs’ wages” and

noting that the Plaintiffs “had been paid the longevity pay at the rate of

$0.25 per hour per year of service for nine years”;

3. The “the pay reductions were made without written notification of changes

to pay practices”; and

4. The “longevity pay was accrued between July 1, 2008 and June 30, 2011,”

and the change of hourly work weeks was not in effect until November

13

2011, and in turn finding that the firefighters “had a vested right to the rate

of $.25 per hour.”

Ultimately, the circuit court also determined that the City violated the WPCA generally,

but the court did not identify what provision was violated or explain how the City violated it. The

court also noted that “the Plaintiffs should have received $0.25 per hour from 2017 to the present

for their accrued longevity pay[,]” granted the plaintiffs’ motion for summary judgment, denied

the City’s motion for summary judgment, and ordered the matter to proceed to damages. In its

five-page order, the circuit court did not distinguish between its findings of facts and conclusions

of law.

After the circuit court found in favor of the plaintiffs, a dispute between the parties arose

regarding the calculation of damages relating to pre-2008 ordinances. After a hearing, the circuit

court entered another order on August 31, 2022—ten months after the original order—entitled

“Final Order from May 5th 2022 Hearing Regarding Enforcement of the Court’s October 22nd

2021 Order.” Relevant to this discussion, the court reiterated its prior conclusory findings that the

City’s argument based on the $624 per year amount was negated by its application and the

language of the statute, that the pay reductions were made without written notification, and the

reduction in pay violated the WPCA. The circuit court later declared, via order, that the August

31, 2022 Order was a “final appealable order as to liability,” stayed the enforcement of the order

pending appeal, and found that “a calculation of damages would be an ineffective use of the

parties’ monies in light of an appeal as damages would have to be recalculated after appeal

regardless of any appeal’s outcome.”

The parties appealed, and the ICA issued a memorandum decision reversing the circuit

court’s determination of liability as to the longevity pay and finding that the circuit court erred by

denying the defendant City’s motion for summary judgment regarding that issue.4 White, 2023 WL

9317831, at *5. The ICA reasoned that the plaintiffs had no “vested interest” in being paid $.25

per hour for longevity pay. Id. The ICA, appearing to parse out the meaning of the City ordinance

without actually discussing it or its application, found that “the application of the 54-hour rate

explicitly denoted in the 2008 longevity pay plan” did not “constitute[] a change or reduction in

wages such as that contemplated by the WPCA” as it was “expressly provided for” in the City’s

Compensation Plan and the “application of that pay rate is not an affirmative change to the

longevity pay plan.” Id. at *5. The ICA also found that the City’s payment of the forty-eight hour

rate “in error” failed to “create a vested interest in such an overpayment to [the firefighters] in

perpetuity.” Id. The plaintiffs appealed the ICA’s memorandum decision to this Court.

4

I do not address the ICA’s conclusions regarding the EMT pay or the standing issue. See

supra n.1.

14

The majority now reverses the ICA, essentially reinstating the circuit court’s original order

granting summary judgment regarding the longevity pay issue. The majority states, with little

analysis or examination of the relevant ordinance—which it relegates to a footnote—that the

change to the fifty-four hour workweek did not affect the original longevity pay of $.25 an hour,

as “[t]he longevity increments at issue accrued between 2008 and 2011, when the Firefighters

worked a forty-eight-hour workweek and the ordinance provided that they were to be paid at the

rate of $0.25 per hour for each year of city service” Mem. Dec. at 7. The majority resolves in

conclusory fashion that the circuit court correctly found that the City “violated the WPCA when it

changed the rate of accrued longevity increment pay without prior notice.” The majority further

found that the City “unilaterally modified the longevity increment policy without prior notice,”

which “retroactively impaired previously earned longevity increments.” Id.

B. A Grant of Summary Judgment to Either Party Was Error

I disagree with each of the prior decisions and would have reversed the ICA as to the

longevity issue and also would have vacated and remanded the circuit court order for further

factual development and analysis. Although both parties at oral argument before this Court

contended that there was no material issue of fact, the plaintiff firefighters still alleged that there

was no mistake in pay after the change to the fifty-four hour workweek (between 2011 and 2017)

and the .$25 rate was always the correct amount, while the City argued that change was a correction

that made the pay rate accurate. This glaring factual discrepancy—and the potential legal impact

of the discrepancy—has not been adequately addressed by any court and is more appropriately put

to a jury consistent with our standards of summary judgment.

A court should grant summary judgment “only when it is clear that there is no genuine

issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application

of the law.’” Syl. Pt. 2, in part, Painter, 192 W. Va. 189, 451 S.E.2d 755 (quoting Syl. Pt. 3, Aetna

Cas. & Sur. Co., 148 W. Va. 160, 133 S.E.2d 770 and Syl. Pt. 1, Andrick, 187 W. Va. 706, 421

S.E.2d 247). Here, all the courts—the circuit court, the ICA, and the majority—have abandoned

this principle to grant summary judgment in an underdeveloped case that is fully unsuitable for a

grant of summary judgment to any party. Surely, the parties urge the courts to reach a resolution

seeking finality and quickly contend throughout this litigation and before this Court that no

material issue of fact exists. However, our judicial system should not be led astray by parties

seeking a quick answer on their path to resolution and instead should remember our role to apply

the Rule of Law. We have long recognized that even when both a plaintiff and a defendant seek

summary judgment, their cross-motions “do[] not constitute a determination that there is no issue

of fact to be tried; and both motions should be denied if there is actually a genuine issue as to a

material fact.” Syl. Pt. 9, Aetna Cas. & Sur. Co., 148 W. Va. 160, 133 S.E.2d 770.

15

When a court considers whether summary judgment is appropriate, its function “is not to

weigh the evidence and determine the truth of the matter, but is to determine whether there is a

genuine issue for trial.” Syl. Pt. 3, Painter, 192 W. Va. 189, 451 S.E.2d 755. As the majority points

out, the WPCA seeks to protect workers and assist them in the collection of compensation

“wrongly withheld.” Mullins v. Venable, 171 W. Va. 92, 94, 297 S.E.2d 866, 869 (1982). However,

based on the facts before us, whether compensation was “wrongly withheld” appears to be a

question of fact that has not adequately been addressed. Although both parties claim that the facts

are not in dispute, their arguments belie their claims. The City proposes that the ordinance was

simply wrongly misapplied for years, which the ICA appeared to believe, while the circuit court

found that the ordinance was properly applied for years. The limited findings and conclusions of

law in the circuit court’s order granting summary judgment to the plaintiffs constrain any appellate

court’s review of the circuit court’s analysis. A close review of the circuit court’s order does not

reveal how the circuit court arrived at its decision, as it fails to explain what acts by the City caused

a violation of the WPCA, other than noting the reduction. Likewise, the ICA, reversing the circuit

court, does not adequately explain why the circuit court was wrong. Meanwhile the majority does

not even grapple with whether the ordinance was correctly or wrongfully applied during the period

between 2011 and the end of 2017, and just summarily concludes that the change violates the

WPCA without explaining why. The majority also reaches its own factual conclusions—that the

City “began providing annualized increases of $624 for longevity increment[,]” contending that

the City “assessed the Firefighters’ work schedules and divided their scheduled hours for each year

by $624 and then added that amount to each Firefighters’ hourly rate.” In the majority’s discussion

of the change in pay, it does not refer back to the ordinance’s language setting the hourly rate at

$0.2222 for fifty-four hour workweeks—instead, placing the language of the ordinance in a

footnote—and concludes that these were “pay reductions” rather than, as the City contends, a pay

correction. Maj. op. at 3.5

“[C]redibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge[.]” Williams v. Precision Coil,

Inc., 194 W. Va. 52, 59, 459 S.E.2d 329, 336 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986) (second alteration in Williams).6 Furthermore, courts should deny summary

5

Although the majority relies on Syllabus Point 4 of Boggess v. City of Charleston, 234

W. Va. 366, 765 S.E.2d 255 (2014), which concerns when a public employer can modify an

employment policy, the majority fails to examine the effect of having language regarding the fifty-

four hour workweek specifically addressed in the ordinance and the Compensation Plan, and

summarily concludes that the City provided no notice to the firefighters.

6

The Williams Court, in recognizing that credibility determinations were for a jury,

explained that when a court reviews summary judgment motions, “[i]n assessing the factual record,

we must grant the nonmoving party the benefit of inferences[.]” Williams v. Precision Coil, Inc.,

194 W. Va. 52, 59, 459 S.E.2d 329, 336 (1995)

16

judgment “even where there is no dispute as to the evidentiary facts in the case but only as to the

conclusions to be drawn therefrom.” Id. (quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915

(4th Cir.), cert. denied, 342 U.S. 887, (1951)). The jury, exclusively, must “weigh the evidence

and resolve questions of fact when the testimony of witnesses is conflicting or when the facts,

though undisputed, are such that reasonable men may draw different conclusions from them.” Syl.

Pt. 1, Evans v. Farmer, 148 W. Va. 142, 133 S.E.2d 710 (1963). Many questions remain regarding

the facts of this case, including those relating to the interpretation of the ordinance, its effect on

the longevity pay rate of firefighters, what—if any—change in interpretation of the ordinance

means, the effect of the ordinance being in the City’s Compensation Plan, and whether the

firefighters had notice based on this information. No courts grapple with past dealings, prior

interpretations, and whether the correction of an error (if there even was an error) is a violation of

the WPCA. In the procedural history of this case, three levels of courts cursorily reached different

conclusions regarding longevity pay: that the WPCA was violated (circuit court and this Court) or

not violated (ICA). This Court should not be making factual determinations at this stage of the

litigation and I disagree with the majority’s resolution of this case.

The circuit court did not adequately develop or consider the underlying facts and their

relation to the application of the ordinance, and related Compensation Plan, addressing longevity

pay or the subsequent purported violation of the WPCA, and thus summary judgment for the

plaintiffs was not appropriate at the circuit court level. Likewise, the ICA’s reversal of the circuit

court’s summary judgment order and entry of summary judgment for the defendant City was

similarly premature. See White, 2023 WL 9317831, at *5. The majority suffers a related infirmity,

favoring conclusions over analysis and glossing over the underlying factual dispute: whether this

was a “pay reduction” or, as the City contends, a “pay correction.” For these reasons, I would have

reversed the ICA and vacated and remanded the circuit court’s order of summary judgment in

favor of the plaintiffs for further factual development or trial, if necessary.

C. Jurisdictional Concern

While I disagree with the majority’s resolution of this appeal, the ICA and the majority

also consider an order on appeal that may not be proper for either the ICA or our review, without

any real consideration of jurisdiction. Pursuant to West Virginia Code § 58-5-1 and Rule 54(b) of

the West Virginia Rules of Civil Procedure, we generally only consider appeals that “lie[]from a

final judgment.” S. Env’t, Inc. v. Bell, 244 W. Va. 465, 474, 854 S.E.2d 285, 294 (2020). This

limitation “avoid[s] piecemeal review of trial court rulings which do not end litigation regarding

all or some claims or parties in a case.” Vaughan v. Greater Huntington Park & Recreation

Dist., 223 W. Va. 583, 587, 678 S.E.2d 316, 320 (2009).

A summary judgment order that “adjudicates liability but not damages is, by definition,

interlocutory.” C & O Motors, Inc. v. W. Va. Paving, Inc., 223 W. Va. 469, 473, 677 S.E.2d 905,

17

909 (2009) (quoting Hubbard v. State Farm Indem. Co., 213 W. Va. 542, 549 n.13, 584 S.E.2d

176, 183 n.13 (2003)). While we have allowed the appeal of orders determining liability without

a damages calculation, we have repeatedly noted that those orders are “generally not

immediately appealable” but may be appealed if “the determination of damages” is “ministerial.”

Syl. Pt. 3, in part, C & O Motors, Inc., 223 W. Va. 469, 677 S.E.2d 905.7 To avoid piecemeal

litigation, we only assume jurisdiction over a case where the calculation of damages is

“mechanical” because then, the case is “unlikely to produce a second appeal because only a

ministerial task similar to assessing costs remains.” Id. at 474, 677 S.E.2d at 910 (quoting State

ex rel. White v. Cuyahoga Metro. Hous. Auth., 684 N.E.2d 72, 75 (Ohio 1997)).

Here, the circuit court issued an order alleging that the order on appeal was a final order,

thus purportedly allowing the parties to appeal although damages had not yet been determined.

While the circuit court found that “there is no just reason for delay” to allow the parties to appeal,

the court appears to base its ruling on its finding that calculating damages may simply cost too

much, as the court noted that “a calculation of damages would be an ineffective use of the parties’

monies in light of an appeal as damages would have to be recalculated after appeal regardless of

any appeal’s outcome.” However, the circuit court’s costs concerns indicate that the calculation of

damages, here, is not ministerial. Furthermore, the issue of calculating damages had already

resulted in further litigation before the circuit court, resulting in the order on appeal. A circuit court

declaring that an order is final “by itself does not satisfy the requirements of finality.” S. Env’t,

Inc., 244 W. Va. at 475, 854 S.E.2d at 295 (quoting Vaughan, 223 W. Va. at 588, 678 S.E.2d at

321). As I note above, the circuit court’s order granting summary judgment lacked adequate

analysis, and this shortcoming is further complicated by the possibility that the judgment is not, in

fact, final. However, neither the ICA nor the majority grapple with whether this case should have

been held for an actual final order before being considered by this Court or the ICA on appeal.

For these reasons, I respectfully dissent.

7

In full, Syllabus Point 3 of C & O Motors, Inc. v. West Virginia Paving, Inc., 223 W. Va.

469, 677 S.E.2d 905 (2009), provides

An order determining liability, without a determination of damages, is a

partial adjudication of a claim and is generally not immediately appealable.

However, an immediate appeal from a liability judgment will be allowed if the

determination of damages can be characterized as ministerial. That is, a judgment

that does not determine damages is a final appealable order when the computation

of damages is mechanical and unlikely to produce a second appeal because the only

remaining task is ministerial, similar to assessing costs.

18

19